Agent of State Prison vs. Lathrop. recognize the rule laid down by Chancellor Kent in the case last cited. Also, State of Illinois v. Delafield, 8 Paige, 529, where the chancellor maintains the rule stated above, that the contractor, with an agent appointed by or under a law, must see to it that the agent strictly pursues his powers, and all are bound to notice the law. The statute was intended for the benefit of the state as well as those who may contract with it, through the agent; and it must be so construed as to guard the rights of the state equally with those of the contractor. Indeed, it appears to me hardly to admit of interpretation. Its language and the intent are so plain, and the duties of agent and contractor are so obvious, and a compliance with the duties set forth so necessary to carry into effect the object of the law, that I do not feel warranted in citing more cases. There can be no ground for the presumption insisted upon by the defendant. I regard the plaintiff as the special agent of the state; the statute makes him. so for a particular purpose only, and he is limited to the performance of his duty in a particular way. The limitation is known to the person with whom he deals; it is embraced in the law conferring the power, and if the instructions were disregarded, the principal was not bound by his act. It would have been otherwise if the limitation had been private. In that case the agent might have accomplished the object in violation of his instructions. But there is another objection to the ground taken by the defendant's council, which grows out of the duties which were incumbent on him at the time he entered into the contract. He was to be an actor, and was required to perform an act necessary to the validity of his contract. He was bound to hand in to the agent sealed proposals. It is not shown that he did so, and the offer was to prove that he never did submit any sealed proposals to the agent. He cannot ask that the presumption of which he asks the benefit can apply to his own duties. The action is, in effect, against the state. The agent has not, or is not presumed to have, any personal interest in it, VOL. I-35 545 Agent of State Prison vs. Lathrop. [445*] and his acts can only *bind the state if done pursuant to the law. His power only arises from the performance of the acts required to be done. If he has failed in his duty to the state, the plaintiff is not bound. We have thus far been endeavoring to show that the validity of the contract depended upon a strict compliance on the part of the agent and the contractor with the requirements of the statute; and I have stated my opinion that, to entitle the defendant to recover, he must show the power of the agent to bind the state, and this must be done by proving his strict performance of his duty. This was incumbent upon him at the trial; and even if he had shown a prima facie case it was competent to the plaintiff to have shown negatively by proof that the agent and contractor neglected their duty, with a view to meet such prima facie case. But the question is made, whether this proof was necessary on the part of the plaintiff below, or permissible to the defendant below, under the issue formed. I think it was. The issue is non est factum, as in the case in 23 Wend. cited above, under which it may be contested whether the deed is the plaintiff's deed; and that it is not, may be shown by proving a lack of power in the agent thus to bind the state or himself as agent, and thus show it is not the plaintiff's deed. It is but an act of justice to the judge who tried this cause at circuit to say, that the point upon which this decision is based was raised after the trial had progressed many days, and after it had become apparent the case would be carried to this court; and therefore the decision made by the judge upon this point was so made with a view to have all the points in the case, which could be raised, decided in this court. Judgment reversed. 546 Williams vs. Hubbard. *WILLIAMS VS. HUBBARD et al. [446*] The return of an execution on the return day is a good return for the purposes of a judgment creditor's bill under the statute.1 NOTE. A creditor may file bill either in aid of execution or to obtain equitable assets, Williams v. Hubbard, Wal. Ch. 28; in the former case, execution need not have been returned, id. Also Beach v. White, id. 495; in the latter, the execution should have been so returned as to subject the officer to an action for a false return if untrue - must not have been returned by direction of complainant, Williams v. Hubbard, id. 28; executions must not, for the purposes of a creditor's bill, filed to reach choses in action and equitable assets, be returned unsatisfied until the return day, or it will indicate that the remedy at law has not been exhausted. If prema. turely returned and a creditor's bill filed for above purposes before the return day, it will be demurrable, Stewart e. Stevens, Har. Ch. 169; Smith v. Thompson, Wal. Ch. 1; Thayer v. Swift, Har. Ch. 430; Cassidy v. Meacham, 3 Paige, 312; Beck . Burdett, 1 id. 305; Edmeston v. Lyde, id. 637; Clarkson v. Depuy et al. 3 id. 312, 320; McElwain v. Willis, 9 Wend. 560; for purposes of a creditor's bill, a return by sheriff of property on his hands for want of bidders is insufficient, Eldred v. Camp, Har. Ch. 162; but if a lien has been acquired by levy, or there is an execution in the hands of an officer, and a fraudulent obstruction has been interposed, a creditor's bill may be sustained for discovery, and to remove obstacles pending the execution, Thayer v. Swift, id. 430; (in part contradicting McKibben v. Barton, ante, 213); but not after its return, unless such lien has been acquired by actual levy, McKibben o. Barton, ante, 213; bil! filed in aid of execution (aud before its return) can only be filed to reach those interests which are subject to sale at law- not mere equitable interests, Trask v. Green, 9 Mich. 358; Maynard v. Hoskins, id. 485; Cleland v. Taylor, 3 id. 201. A creditor's bill can not be sustained where the return of execution was made more than a month before the return day, notwithstanding the bill was filed after the return day, Stafford v. Hulbert, Har. Ch. 435; (both Stafford Hulbert and Thayer v. Swift are fully reviewed and indorsed by Chancellor Manning, in Smith ". Thompson, Wal. Ch. 1, and have ever since been the rule). Though judgment creditor's bill cannot be sustained to reach equitable assets or choses in action where the execution was returned before the return day, it may be, to have conveyances set aside as fraudulent, Beach v. White, id. 495; return conclusive between the parties when good on its face and not made by collusion between creditor and officer, or by direction of the creditor, Albany City Bank v. Dorr id. 317; bill must be filed within reasonable time after the return on which it is based nine years held unreasonable, and receiver denied, Gould v. Tryon, id. 353. If right to file bill has acerued by proper return, the issuing of a Williams vs. Hubbard. Where the officer returned, to an execution against two defendants, that they had no goods or chattels, lands or tenements, without in terms negativing the fact that either of them had, the return was held suffi cient. On a judgment creditor's bill, the regularity of the judgment and execu tion cannot be inquired into. new execution will not take it away, Clark v. Davis, Har. Ch. 227. Attachment creditor, making a void levy on equitable interest, against a defendant not served and not appearing, can not acquire a lien which equity would enforce by creditor's bill, Trask v. Green, 9 Mich. 358; debtor's death ends the remedy - when? Jones v. Smith, Wal. Ch. 115; good plea to creditor's bill that debtor offered to turn out real estate to officer, which plaintiff refused to accept, Wharton v. Fitch, id. 143; one who takes title from a fraudulent debtor to defraud creditors will be charged with its value, Robinson v. Boyd, 17 Mich. 128; lies to compel stockholders to pay in what is unpaid on their stock, Pettibone v. McGraw, 6 id. 441; for practice upon creditor's bills, and provision for avoiding expense of answer, taking bill as confessed, appointing receiver and examining the debtor on oath, see Chancery Rules 104 to 111, in vol. 2 Mich. (Gibbs) pp. 42 to 46. - In Wisconsin, a creditor's bill, in aid, might have been filed during the pendency of the execution prior to the code, Goss v. Lester, 1 Wis. 43; Williams v. Sexton, 19 id. 42. The code substituted proceedings supple. mentary to execution, In re Remington, 7 id. 643, and abolished credi tor's bill, Graham v. La Crosse & Mil. R. R. Co., 10 id. 459; Seymour ĉ. Briggs, 11 id. 196; creditor's bill was restored by ch. 303, Laws of 1860. Creditor whose execution is returned unsatisfied may file to set aside deed, Gates v. Boomer, 17 id. 455; Winslow v. Dousman, 18 id. 456; Williams . Sexton, 19 id. 42; Howe v. Colby, 19 id. 583; execution must be returned unsatisfied against corporation, before creditor's bill can be filed against delinquent stockholders, Adler Pat. Brick Man. Co., 13 id. 57. What allegations necessary, Seaman v. Goodnow, 20 id. 27; must be for joint benefit of all, 19 id. 583; 13 id. 57; Coleman v. White, 14 id. 700; but need not make all creditors parties plaintiff, nor all stockholders defendants, Pierce v. Milwaukee Construction Co., 38 id. 253. - In Illinois, execution must have been returned unsatisfied before credi tor's bill to impeach debtor's conveyance for fraud can be filed, 2 Scam. 531; 3 Gilm. 518; 4 id. 511; 31 Ill. 330; but he may file a bill without obtaining judgment at law to enforce and secure a trust, Miller c. Davidson, 3 Gilm. 518; and after judgment and before execution returned, be may file a bill to remove a fraudulent incumbrance, id., but where he seeks to satisfy his debt out of some equitable estate, not liable to levy and sale at law, he must first exhaust his remedy bona fide, by judgment and execu tion, id. Also 14 Ill. 271; 17 id. 281; 52 id. 98; 4 Gilm. 511; 13 Ill. 221; 24 id. 257; 31 id. 336; unless it be against an administrator, in which case resort may be had to equity without execution returned, 11 id. 31; 31 id. Williams vs. Hubbard. Where the test day of an execution, and the day a levy was made, are stated in the bill, but not the return day of the execution, the court will take judicial notice of the terms of the court out of which the execution issued, for the purpose of ascertaining whether the levy was made in the lifetime of the execution. Where one of the several judgment debtors is wholly irresponsible and destitute of property, he need not be made a party to a judgment creditor's bill. What is a sufficient allegation that E. P. H. was the assignee in bankruptcy of W. APPEAL from the Court of Chancery. A bill was filed by Williams against Hubbard, Barton and Mooney, for the purpose of reaching equitable assets belonging to Hubbard, the judgment debtor, and to set aside a conveyance of real estate, made by Hubbard to Mooney, to defraud creditors. The bill stated the obtaining of a judgment by Williams against Hubbard and one Cooper, who was not a party to the bill, in the Oakland circuit court, on the 30th March, 1841; the issuing of an alias fi. fa. on 21st De 337; Sheere v. Hoagland, 39 id. 264; but only in equitable cases, Garvin . Stewart, 59 id. 229. But judgment to be obtained and execution issued and returned nulla bona as a rule, Hancock v. Durand, 42 id. 230; McConnell v. Dickson, 43 id. 99; judgment must have been a lien on the property claimed to have been fraudulently conveyed,- if no execution issued within a year after judgment rendered, no bill will lie, Newman v. Willetts, 52 id. 98; see also Muggee v. Ewing, 54 id. 236; what allegations suffice to sustain bill, Mitchell v. Byers, 67 id. 522; bill filed in aid of a levy does not abandon the levy, Amick v. Young, 69 id. 542; creditor's bill inures to benefit of all who prove claims, whether made parties or not, Pennell v. Lamar Ins. Co. 303; creditor having two funds when not compelled to resort to the other, by creditor having only one, Sweet v. Redhead, 76 id. 374; heirs cannot set aside ancestor's deed for fraud as to creditors, White v. Russell, 79 id. 155; practice on, Burnham v. Lamar Ins. Co., id. 160. If sheriff on his own responsibility returns execution nulla bona before the end of 90 days, creditor's bill will lic, First Nat. Bank of Sioux City . Gage, id. 207; bill to set aside fraudulent conveyance need only show exe. cution issued and returned nulla bona, by officer on the admission of dofendant, Lewis v. Lanphere, 79 id. 187; equitable interests can only be reached by, after execution returned unsatisfied, Moshier v. Meek, 80 id. 79; discharge in bankruptcy precludes court from rendering personal decree, but not a decree in rem as to property fraudulently conveyed, Phelps v. Curts, 80 id. 109. |